Vaughan Black, ‘Cultural Thin Skulls’

Abstract:
I take as my text a number of recent court decisions in tort actions, about thirty of them. What characterizes the judgments I examine here is that in them claimants have argued (generally, though not invariably, with success) that something in their culture, their religion or both entitles them to either a finding of liability where liability would not be justified in the absence of that cultural or religious make-up, or, more commonly, greater damages than they would be entitled to in the absence of their specific cultural background.

I am not considering claims for loss of culture. In loss-of-culture cases, plaintiffs complain that what they have been deprived of is the language, skills, attitudes, and stories of their ancestors. These plaintiffs have most commonly been First Nations people, but loss-of-culture allegations have not been limited to these groups. (1) Such arguments have been advanced both in the courts (2) and also in the public reparations scheme for government compensation in respect of mistreatment at residential schools. Claimants in those suits maintain that they do not have a culture or, rather, they lack the intellectual and cultural inheritance they should rightfully have. They may assert that the theft of their cultural legacy from them is a stand-alone cause of action. More plausibly, they aver that their loss of their cultural birthright and its traditional narratives should be counted as a harm, and perhaps even as a distinct head of damages, in the context of some traditional ground of civil liability — for instance, negligence, battery or breach of fiduciary duty.

Black, Vaughan, Cultural Thin Skulls (2009). 60 University of New Brunswick Law Journal 186, 2009.

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